Park City Yacht Club v. City of Bridgeport

• Decision Date: 09 April 1912
• Citation: 82 A. 1035,85 Conn. 366
• Court: Connecticut Supreme Court
• Parties: PARK CITY YACHT CLUB v. CITY OF BRIDGEPORT.

82 A. 1035

85 Conn. 366

PARK CITY YACHT CLUB v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

April 9, 1912

Case Reserved from Superior Court, Fairfield County; Howard J Curtis, Judge.

Application by the Park City Yacht Club adversely to the City of Bridgeport, in the nature of an appeal from an assessment of special benefits on account of the laying out and widening of Stratford avenue in the city, brought to the superior court and reserved upon a finding of facts, for the advice of the Supreme Court of Errors. Judgment for $1,200 for plaintiff advised.

John W. Banks, for plaintiff.

John S. Pullman and James A. Marr, for defendant.

WHEELER, J.

The record upon a former appeal of this case, reported in 81 Conn. 76, 70 A. 631, contains a statement of facts substantially similar to those of the present record, by which it appears that:

The plaintiff is a yacht club, owning and occupying a clubhouse upon the south side of Stratford avenue in Bridgeport and on the easterly bank of an arm of the harbor, which was crossed by Stratford avenue by means of a solid stone causeway. Acting under its charter and the various votes and orders of its common council, committees, and boards, all of which appear in detail in the opinion in that case, the city tore down in 1901 and 1902 the part of this causeway just west of plaintiff's premises and north of the present roadway in front of said premises, and laid out a highway and constructed a bridge north of the causeway being parallel with said causeway, but much higher in grade and having a high and immovable railing along its south side and extending 150 feet east of the entrance to the clubhouse. South of the bridge is a gap of water 23 feet wide left by the tearing out of the causeway. The traveled way remaining over the old causeway is only 24 feet wide. The plaintiff's property is thus left as a result of this improvement on a cul-de-sac. The former finding did not state directly whether or not the improvement ordered by the city contemplated a construction such as that in fact made. The present finding sets forth in detail the history of the building of the bridge and of the changes actually made as evidence received to show that at and before the lay-out and appraisal the city contemplated the construction of the bridge and the physical changes in front of plaintiff's premises, and finally it sets forth the ultimate fact that this " was contemplated by the city before the said lay-out and appraisal." The court reserved the question whether the history and facts showing what use the city contemplated making of Stratford avenue as widened should have been excluded.

Two principal questions have been urged in argument: (1) That the superior court could not in this proceeding consider the effect upon the plaintiff's property of the physical changes proved. (2) That the damages suffered by the plaintiff by reason of these physical changes and by reason of diversion of travel are not recoverable.

In the former opinion we held that " the application alleges in substance, that the improvement in question, namely, the lay-out, alteration, exchange, discontinuance, and enlargement of Stratford avenue contemplated such a construction and working of the highway established in place of the one previously existing that the plaintiff would be largely shut off from free and direct access from its adjoining property to the main traveled path of the highway," and that " the application appears to have been tried to the court upon the denial of these allegations." The opinion recites the proof of physical changes made by the city subsequent to the confirmation of the assessment which accorded with the contemplated changes as alleged in the application, and says: " The finding does not state directly whether or not the court found to be true the allegation of the complaint that the improvement ordered by the city contemplated a construction such as that proved upon the trial. It would perhaps appear from the memorandum of decision that the fact alleged was a fair inference from the facts proved." Upon the application and facts found, the trial court had held that " the only question open upon this proceeding is the effect of the widening of Stratford avenue, and that in consequence of this ruling he did not, in fact, estimate the effect of said changes other than the widening of said highway upon the value of the appellant's property." The basis of the ruling was that the scope of the application was limited by the vote of the common council to the widening of Stratford avenue, and hence other physical changes were not elements of damage to be considered in this proceeding. This was the important question involved in the former appeal, and was the most strongly argued of the questions reserved on this appeal.

After reciting the various provisions of the charter and the proceedings thereunder, we say in our former opinion: " This action of the common council contemplated a lay-out of the public improvement previously resolved upon by the common council, by which Stratford avenue was altered, changed discontinued and enlarged, as set forth in the report. *** And in this case that improvement as established in front of the plaintiff's premises was a highway involving an alteration, extension, and practical discontinuance for public...